Gauhati High Court
M/S G.D. Engineering Construction vs The Union Of India And 2 Ors on 9 December, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
Page No.# 1/4
GAHC010212382021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2150/2021
M/S G.D. ENGINEERING CONSTRUCTION
GHANSHYAM DAS DHIMAN, PROPRIETOR, P.O. HALLESWAR, TEZPUR,
PIN-784001, ASSAM
VERSUS
THE UNION OF INDIA AND 2 ORS
THROUGH THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI
2:THE CHIEF ENGINEER
AIRFORCE
SHILLONG ZONE
ELEPHANT FALLS CAMP
P.O. NONGLYER
SHILLONG-793011
3:THE GARRISON ENGINEER
AIRFORCE
TEZPUR-78410
Advocate for the Petitioner : PETITIONER IN PERSON
Advocate for the Respondent : ASSTT.S.G.I.
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-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA 09-12-2021 Heard Mr. GD Dhiman, petitioner-in-person. Also heard Mr. H Gupta, learned Central Government Counsel, for respondent No.1.
2. This application has been filed under Section 11(6) read with Section 15 of the Arbitration & Conciliation Act, 1996 (hereinafter to be referred as 'the Act of 1996') for appointment of a fresh independent Arbitrator and according to the petitioner, the mandate of the earlier Arbitrator has come to an end.
3. The brief facts of the case are as under:
The petitioner before this Court executed a contract with Union of India for special repairing and alteration of the Squash and Badminton Courts at the Officers Mess at Tezpur. Thereafter, dispute arose between the parties and the petitioner moved an application before this Court for appointment of an Arbitrator. The Arbitrator was appointed. Subsequently, after hearing the parties, the Arbitrator gave an award in favour of the petitioner. Aggrieved, the Union of India moved an application under Section 34 of the Act of 1996 before the Principal Judge, Sonitpur district for setting aside the award which was later dismissed. No appeal was filed.
4. Meanwhile, within thirty days from the date of the award, the present petitioner moved an application before the concerned Arbitrator under sub-section 4 of Section 33 of the Act of 1996 praying for additional award. Sub-section 4 of Section 33 reads as under:
"33. Correction and interpretation of award; additional award.--
(1) ....... (2) ....... (3) .......
Page No.# 3/4 (4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award."
5. The case of the petitioner is that on certain points raised by him, no award was given by the Arbitrator and hence, he prayed for additional award.
6. The case of the Union of India, on the other hand, is that it is not that on that points there was no consideration of the Arbitrator but those points were considered though no amount of money was awarded on those claims to the petitioner.
7. Be that as it may, when there was no consideration of the application filed under Section 33(4) of the Act of 1996, the applicant moved another application, being IA(C) No.4165/2017 under Section 11(6) of the Act of 1996 before this Court praying for appointment of an Arbitrator. Since the respondent Union of India had no objection to it, Mrs. Nayan Sharma was appointed as Arbitrator by order of this Court dated 04.06.2018. Now, after passing of more than three years, the petitioner has moved yet another petition apparently under Section 11(6) read with Section 15 of the Act of 1996 for appointment of a subsequent Arbitrator on grounds that the Arbitrator appointed by this Court vide order dated 04.06.2018, has not been functioning! This application is totally misconceived and amounts to nothing but an abuse of process of the Court. Though the petitioner has not filed copy of the initial award dated 02.01.2016, it appears from the documents and learned counsel for Union of India also states that it is not that the first Arbitrator had not considered any of the claims made by the applicant. The claims were considered though no award was given on certain claims. This is entirely different from non-consideration of the claims at all, for which an application is pending under Section 33(4) of the Act of 1996.
8. Be that as it may, the applicant moved an application for appointment of Page No.# 4/4 Arbitrator for deciding the additional claim and this Court did appointed an Arbitrator on 04.06.2018. Now, the case of the petitioner is that he has been asking the learned Arbitrator to summon the whole records and adjudicate the matter. He has filed the present application after a period of more than three years. Under sub-section 5 of Section 3 of the Act of 1996, the Arbitrator has to give an award on additional claim, if any, within a period of sixty days. Though this time has expired much earlier, no reason has been assigned by the petitioner which may justify the delay in filing this application. This petition is totally devoid of merit and dismissed in limine.
CHIEF JUSTICE Comparing Assistant